Sunday Excerpt: "The Hidden History of Guns and the 2nd Amendment"

In it's corrupt Heller decision, SCOTUS decided for the first time in American history that every citizen has a personal right to own a gun: a decision that helped the Michigan shooter get a gun...

Heller: Re-interpreting the Second Amendment

The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

-- Justice John Paul Stevens’ dissenting opinion in District of Columbia v Heller

            The June 26, 2008 Supreme Court decision in the case of District of Columbia v. Heller was a major and pivotal turn in America’s understanding of the Second Amendment.  But it was also a substantial rewrite of the Second Amendment, both in detail and in rewriting its very history.

            As the historical record clearly shows, that Amendment was created to satisfy two constituencies and had virtually nothing to do with the Heller finding that there was an “individual right” to gun ownership in the United States.  So who were the groups who pushed for this particular amendment to the brand-new constitution?  

            The first was what would become the anti-Federalist faction, led by Jefferson, who were concerned that if the country maintained a standing army during times of peace, members of that army might conspire to overthrow the new government the Founders had just created (something that happened frequently in history, around the world, from ancient times to today). 

            The second constituency was the representatives of the slave states, who were concerned that the Article I, Section 8 authority of the federal government to call up an army might end up freeing slaves in the process, and they wanted to protect their state militias, which were largely then known, in those slave states, as “slave patrols.” 

            But in 2008, in a squeaker 5/4 decision, Justice Antonin Scalia stretched logic and fantasy to the breaking point to “discover,” for the first time in nearly 230 years, that there was a secret “private right to gun ownership” to “defend hearth and kin” buried deep within the 2nd Amendment. [i] 

            Scalia’s first argument was that the 2nd Amendment’s use of the phrase “right of the people” to keep and bear arms meant to give everybody in the US the largely-unlimited right to gun ownership, just as the First and Fourth Amendments, respectively, protect everybody’s right to free speech and privacy.  

            This was the first time in the nearly-220 year history of the United States that any court – or any branch of government, for that matter – had suggested such a thing.  Thus, in the dissent written by Justice Stevens and joined by Justices Breyer, Souter, and Ginsberg, they note that Scalia’s new theory about the Founders’ intent was, essentially, nonsense made up to keep happy the hard right and the gun lobby that so richly supported the GOP. 

            “The centerpiece of the Court’s textual argument,” Stevens and his colleagues wrote, summarizing Scalia’s argument, “is its insistence that the words ‘the people’ as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments. According to the Court, in all three provisions—as well as the Constitution’s preamble, section 2 of Article I, and the Tenth Amendment —‘the term unambiguously refers to all members of the political community, not an unspecified subset.’”

            Stevens then takes apart Scalia’s argument:

            “But the Court itself reads the Second Amendment to protect a ‘subset’ significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to ‘law-abiding, responsible citizens.’

            “But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.”

            Scalia also argues, in the absence of any evidence whatsoever from the time of the Amendment’s ratification, that the 2nd Amendment was passed to allow individuals to own guns for self defense (which was the essence of the Heller case, as DC had forbidden people from owning guns even for that reason), rather than a purely military/militia context. 

            Stevens, et al, in their dissent (which, but for one Republican-appointed justice, would have been the majority decision), argue back that:

            “The stand-alone phrase “bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text.

            “The Court’s [Scalia’s] objection is particularly puzzling in light of its own contention that the addition of the modifier ‘against’ changes the meaning of ‘bear arms.’” They add, quoting a previous Supreme Court decision on the topic, “The phrase ‘bear Arms’ also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposition ‘against.’”

            Stevens and company add:

            “When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. …

            “Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as ‘elevat[ing] above all other interests’ ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’”

            Even a previous Supreme Court Chief Justice, Nixon appointee Warren Berger, called the idea that the Second Amendment conferred an “individual right” to gun ownership a lie.